24 FLRA No. 58
AIR FORCE SPACE DIVISION,
LOS ANGELES AIR FORCE STATION,
CALIFORNIA
Activity
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2429
Union
Case No. 0-AR-1027
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on an exception to the award of
Arbitrator E. Lad Sabo filed by the Agency under section 7122(a) of the
Federal Service Labor-Management Relations Statute and part 2425 of the
Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
The grievance alleged that the Activity violated the merit promotion
provisions of the parties' collective bargaining agreement and the local
negotiated merit promotion plan when particular vacancy was filled
through the Air Force-wide Comptroller Civilian Career Management
Program (CCCMP) rather than through local promotion procedures. The
parties agreed that the Arbitrator would frame the issue and each party
submitted its version of the issue for consideration.
The Activity's version was as follows:
Whether Grievant, an Employee represented by AFGE, Local 2429,
was properly considered for the position of GS-560-12, Budget
Analyst in ACBI, a position designated a headquarters Air Force
career program position, under Merit Promotion Cert.
OCPO-C-84-239? If not, what should the remedy be?
The Union's version of the issue was:
1. Whether the Collective Bargaining Agreement and the
negotiated Space Division Merit Promotion Plan, dated 5 January
1983, contain any provisions for excluding bargaining unit
positions which management has identifed for the Comptroller
Civilian Career Management Program (CCCMP) or any other career
program?
2. Whether Management violated the Collective Bargaining
Agreement and the negotiated space Division Merit Promotion Plan,
dated 5 January 1983, in the filling of the GS-560-13 Budget
Analyst position, which is a bargaining unit position.
After considering these statements, the Arbitrator framed the issue
based on the nature of the grievance as follows:
Did the Employer violate the Collective Bargaining Agreement
and the Space Division Merit Promotion Plan in the filling of a
Bargaining Unit Position, Budget Analyst, GS-560-13, SD/ACBI, Los
Angeles AF Station, CA PEP #560-13-N-BGT-A?
In elaborating on the nature of the grievance and the issue to be
decided, the Arbitrator expressly noted the responses of the Activity in
denying the grievance at the initial steps of the grievance procedure.
In particular, he quoted a portion of the Activity's step 1 answer which
essentially maintained that GS-560-13 budget analyst positions are CCCMP
positions which are governed by agency regulation and that therefore
such positions are excluded from coverage under the local merit
promotion procedures. The Arbitrator further quoted the Activity's Step
3 answer which similarly maintained that the Activity's local merit
promotion procedures do not apply to CCCMP positions.
After evaluating the evidence presented, the Arbitrator determined
that management's position on the coverage of the merit promotion
provisions of the parties' agreement was not supported. Based on the
requested finding of the Union, the Arbitrator consequently ruled that
the Activity violated the terms of the parties' collective bargaining
agreement and rendered the following award:
The Employer violated the Collective Bargaining Agreement and
the Space Division Merit Promotion Plan in the filling of a
Bargaining Unit Position, Budget Analyst, GS-560-13, SD/ACBI, Los
Angeles AF Station, CA PEP #560-13-N-BGT-A.
Remedy: The Employer is ordered to comply with the terms of
the Labor Agreement on any and all future openings pursuant to the
locally negotiated Labor Agreement.
III. EXCEPTION
In its exception, the Agency contends that the award is deficient
because the Arbitrator exceeded his authority by issuing an affirmative
remedy applicable to selection actions other than the specific action
which formed the basis of the grievance. In support of this exception,
the Agency cites the Authority's decision in U.S. Department of Justice,
Federal Prison System, Federal Correctional Facility, Fort Worth, Texas
and American Federation of Government Employees, Local 1298, AFL-CIO, 17
FLRA 278 (1985), and maintains that like the arbitrator in that case,
the Arbitrator in this case exceeded his authority by addressing "any
and all future openings" when his authority was confined to the specific
selection action in dispute. The Agency also cites the decision in
American Federation of Government Employees, AFL-CIO, National
Immigration and Naturalization Service Council and U.S. Immigration and
Naturalization Service, 15 FLRA 355 (1984), and maintains that the
Arbitrator in this case exceeded his authority by extending the remedy
beyond that necessary to make the grievant whole.
IV. ANALYSIS AND CONCLUSIONS
We conclude that the Arbitrator did not exceed his authority.
The Authority has specifically held that an arbitrator's award will
be found deficient as in excess of the arbitrator's authority when the
arbitrator resolves an issue not submitted to arbitration. See Federal
Correctional Facility, Fort Worth, Texas, 17 FLRA at 279. But the
Authority, like the Federal courts, will accord an arbitrator's
interpretation of a submission agreement and an arbitrator's formulation
of the issue submitted in the absence of a stipulation the same
substantial deference accorded an arbitrator's interpretation and
application of the collective bargaining agreement. For example, Mobil
Oil Corp. v. Independent Oil Workers Union, 679 F.2d 299 (3d Cir. 1982).
In particular, the Federal courts permit an arbitrator to extend the
award to issues that necessarily arise from the issues specifically
included in a submission agreement or the arbitrator's formulation of
the issues submitted in absence of a stipulation by the parties. See
Kansas City Luggage and Novelty Workers Union Local No. 66 v. Neevel
Luggage Mfg. Co., 325 F.2d 992, 994 (8th Cir. 1964). Both the Authority
and the Federal courts have consistently emphasized the broad discretion
to be accorded arbitrators in the fashioning of appropriate remedies.
For example, U.S. Department of Justice, Bureau of Prisons, Federal
Correctional Institution, Lexington, Kentucky and American Federation of
Government Employees, Local 817, 21 FLRA No. 108 (1986); IAM District
776 v. Texas Steel Co., 639 F.2d 279 (5th Cir. 1981).
In this case, we conclude that the award and remedy of the Arbitrator
is not in excess of his authority. Instead, the Agency's exception
essentially disagrees with the Arbitrator's formulation of the is